The Board of Zoning Appeals shall have the following powers and duties:
a. Administrative Review. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this ordinance.
b. Special Exceptions - Conditions Governing Applications - Procedures. To hear, and make recommendations to the Town Council on, such special exceptions as the Board of Zoning Appeals is specifically authorized to hear by the terms of this ordinance and in compliance with state law; to decide such questions as are involved in determining whether special exception should be granted; and to make recommendations to the Town Council on special exceptions with such conditions and safeguards as are appropriate under this ordinance. A special exception shall not be considered by the Board of Zoning Appeals unless and until:
1. A written application for a special exception is submitted indicating the section of this ordinance, as amended from time to time, under which the special exception is sought and stating the grounds on which it is requested.
2. Notice shall be given by publication in accordance with the requirements of I.C., § 5-3-1, et seq. Additional notice of such hearings shall be given to all interested parties. The Board of Zoning Appeals shall, by rule, determine the following:
(1) Who are interested parties;
(2) How notice is to be given to them; and
(3) Who is required to give the notice.
3. The public hearing shall be held at the place and time specified. A party seeking to appear by agent or attorney at any hearing as provided herein shall submit to the body before whom the hearing is to be held, prior to the hearing, a letter of authorization or properly executed power of attorney authorizing the agent or attorney to appear at the hearing on behalf of the party.
4. The Board of Zoning Appeals shall make a finding that it is empowered under the section of this ordinance described in the application to grant the special exception, and that the granting of the special exception will not adversely affect the public health, safety, welfare or morals of the Town.
5. Before any special exception shall issue, the Board shall make written findings certifying compliance with the specific rules governing individual special exceptions and that satisfactory provision and arrangement has been made concerning the following where applicable:
a. Ingress and egress to property and proposed structures thereon with particular reference to automotive and pedestrian safety and convenience, traffic flow and control, and access in case of fire or catastrophe.
b. Off-street parking and loading areas where required, with particular attention to the items in a. above and the economic, noise, glare, or odor effects of the special exception on adjoining properties and properties generally in the district.
c. Refuse and service areas, with particular reference to the items in a. and b. above.
d. Utilities, with reference to locations availability, and compatibility.
e. Screening and buffering with reference to type, dimension, and character.
f. Signs, if any, and proposed exterior lighting with reference to glare, traffic safety, economic effect, and compatibility and harmony with properties in the district.
g. Required yards and other open spaces.
h. General compatibility with adjacent properties and other property in the district.
c. Variances – Conditions Governing Applications – Procedures. To authorize upon appeal in specific cases such variances of development standards or use from the terms of this ordinance as will not be contrary to the public interest where, owning to special conditions, a literal enforcement of the provisions of this ordinance would result in unnecessary hardship. A variance from the terms of this ordinance shall not be granted by the Board of Zoning Appeals unless and until:
1. A written application for a development standards or use variance is submitted indicating the section of this ordinance, as amended from time to time, under which the variance is sought and stating the grounds on which it is requested. The written application for a development standards variance shall demonstrate:
a. The approval will not be injurious to the public health, safety, morals, and general welfare of the community.
b. The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner.
c. The strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property.
2. The written application for a use variance shall demonstrate:
a. The approval will not be injurious to the public health, safety, morals, and general welfare of the community.
b. The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner.
c. The need for the variance arises from some condition peculiar to the property involved.
d. The strict application of the terms of the zoning ordinance will constitute an unnecessary hardship if applied to the property for which the variance is sought.
e. The approval does not interfere substantially with the comprehensive plan of the Town of Dyer adopted under I.C., 36-7-4-500, as amended from time to time.
3. No non-conforming use of neighboring lands structures, or buildings in the same district, and no permitted or non-conforming use of lands, strictures, or buildings in other districts shall be considered for the issuance of a variance.
4. The Board of Zoning Appeals shall hold a public hearing to consider an application for development standards or use variance. Notice of public hearing shall be given as in Section 10-135b.2..
5. The public hearing shall be held at the place and time specified. A party seeking to appear by agent or attorney at any hearing as provided herein shall submit to the body before whom the hearing is to be held, prior to the hearing, a letter of authorization or properly executed power of attorney authorizing the agent or attorney to appear at the hearing on behalf of the party.
6. The Board of Zoning Appeals shall make written findings using the criteria as set forth in Sections 10-135(c)1. and 2.
7. In granting any variance, the Board of Zoning Appeals may prescribe appropriate conditions and safeguards in conformity with this ordinance, as amended from time to time. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this ordinance and punishable under Section 10-142, as amended from time to time.
8. Under no circumstances shall the Board of Zoning Appeals grant a variance to allow any use expressly or by implication prohibited by the terms of this ordinance in said district.
d. Board has Powers of Administrative Official on Appeals – Reversing Decision of Administrative Official. In exercising the above mentioned powers, the Board of Zoning Appeals may, so long as such action is in conformity with the terms of this ordinance, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination as ought to be made, and to that end shall have the powers of the administrative official from who the appeal is taken. The concurring vote of three (3) members of the Board shall be necessary to reverse any order, requirement, decision, or determination of the administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under this ordinance, or to effect any variation in the application of this ordinance.
(Ord. No. 2007-33, 12-27-07)